## Facts

- Mr. Donoghue, the claimant, suffered serious injuries after jumping into a shallow area of Folkestone Harbour, Kent, during the early hours of the morning.
- The harbour was owned and managed by Folkestone Properties Ltd.
- Mr. Donoghue argued that Folkestone Properties had breached its duty of care under the Occupiers' Liability Act 1984 by failing to prevent injury to individuals who might enter the premises outside normal operating hours.
- The defendant maintained that Mr. Donoghue was a trespasser and that no duty of care was owed to him, especially given the time and nature of his entry.
- The trial judge found for the defendant, concluding no breach of duty.
- Mr. Donoghue appealed to the Court of Appeal, challenging whether the 1984 Act's duty of care extended to entrants at unusual times and under unusual circumstances.

## Issues

1. Whether the duty of care under the Occupiers' Liability Act 1984 extends to individuals entering premises at unusual times and for purposes unrelated to the occupier's business.
2. Whether the time of day and the claimant's manner of entry affect the foreseeability of risk and the existence of a duty of care.
3. Whether Folkestone Properties breached its duty of care by failing to protect against risks arising from entry outside normal operating hours.

## Decision

- The Court of Appeal held that the duty of care under the Occupiers' Liability Act 1984 is not static but context-dependent, influenced by the circumstances, including time of entry and purpose.
- The court found that the defendant could not reasonably have foreseen that someone would enter the harbour at night and engage in risky behaviour such as jumping into shallow water.
- The risk of injury to Mr. Donoghue was not reasonably foreseeable under the prevailing circumstances.
- As such, Folkestone Properties did not owe a duty of care to Mr. Donoghue at the time and in the situation in which his injury occurred.
- The appeal was dismissed and the trial judge's decision was upheld.

## Legal Principles

- The duty of care under the Occupiers' Liability Act 1984 arises only when specific statutory conditions—under section 1(3)—are met, including awareness of the danger and foreseeability of people being in the vicinity of the danger.
- The duty of care owed by occupiers is not universal or absolute; it must be assessed according to the particular facts, including the time of day and type of entry.
- Occupiers need only guard against risks that are reasonably foreseeable, and not every possible risk.
- The case affirms that the context, such as an entrant being a trespasser outside normal hours, limits the extent and nature of the duty owed.

## Conclusion

The Court of Appeal confirmed that the duty of care under the Occupiers' Liability Act 1984 is context-specific, affected by factors such as time of entry and foreseeability; since the risk was not reasonably foreseeable in this case, no duty was owed and the occupier was not liable for the claimant's injuries.


Donoghue v Folkestone Properties Ltd [2003] 2 WLR 1138 (CA)